Technology: Preparing for a discovery conference with the opposing party

Preserving, collecting, culling, reviewing and producing electronically stored information (ESI) is costly and time-consuming. If not managed properly, discovery of ESI can break a litigation budget. One critical aspect of managing the e-discovery process and budget is the ESI protocol. Parties who manage to negotiate and execute a detailed ESI protocol are more likely to streamline the ESI discovery process and avoid costly disputes and unnecessary duplication of efforts.

Rule 26 of the Federal Rules of Civil Procedure requires parties to meet and confer regarding discovery issues at the outset of a case and to prepare a “discovery plan” that addresses “any issues about disclosure or discovery of electronically stored information, including the form or forms in which it should be produced.” In order for a discovery plan to be effective, however, it must address and resolve a number of specific issues. These include:

1. Preservation of ESI: Parties have an obligation to preserve potentially discoverable information. Preservation of ESI can, however, be costly and unnecessarily duplicative. Many organizations maintain backup media that preserve copies of ESI. Most organizations recycle backup media pursuant to a routine schedule or procedure. The discovery of ESI contained on backup media is one of the more expensive aspects of e-discovery and in many cases is unnecessary. Moreover, the disruption of routine recycling of backup media can be extremely costly. Parties should seek to reach agreement as soon as possible as to whether or not it is necessary to disrupt usual recycling procedures.

2. Collection of ESI: ESI can be stored in any number of locations. To avoid disputes regarding the completeness of the parties’ collection efforts, it is critical that the parties understand how and where ESI is located and what efforts are made to collect all relevant ESI reasonably available. This includes a number of considerations, including:

Custodians: The parties should seek to reach agreement on a list of agreed custodians from whom ESI will be collected. This may include individuals likely to have stored relevant ESI, as well as departments or shared space on company computers, such as shared servers . Parties should remember to specifically address whether individual custodians’ ESI is likely to have been stored under a username other than their own—for example, in the email box or personal drive of an assistant.

Multiple forms of media: The parties should specifically address whether they will collect ESI from multiple electronic devices that may be maintained by the agreed upon custodians, including mobile devices such as cellphones, PDAs, laptops and home computers. Many organizations maintain a centralized server system that is synced to users’ mobile devices and makes it unnecessarily duplicative to collect ESI from multiple forms of media. This is, however, not universally true and the parties should address all of these issues at the outset to avoid disputes down the road.

Forensic recovery of ESI: Restoration of backup media and information in the slack space of computer storage media is very expensive and generally should be avoided absent a specific need. The parties should address this issue up front and determine whether forensic recovery of deleted ESI should be pursued.

Methodology of collection: The parties should generally agree to take reasonable steps to preserve and collect ESI and metadata, using methodologies reasonably calculated to preserve metadata, facilitate processing and support the searching of extracted metadata and text. These methodologies are standard and inexpensive and will protect against inadvertent spoliation of ESI.

3. Culling of ESI: Once parties have collected ESI from all agreed-upon sources, the volume of data is often unwieldy and production of it in its entirety would be expensive and result in an unnecessary overproduction of irrelevant data. Thus, the parties should address and seek to reach agreement on a method of culling the data. This includes a number of considerations, including:

Date range: A simple and effective method of culling ESI is by using an agreed-upon date range. Parties must remember to specifically address and agree upon the proper application of the date range (i.e., whether to focus on the date ESI was created, modified or sent).

Duplicates: Another standard method of culling ESI is by removing duplicates. Parties must specifically address and discuss whether duplicates are to be removed from within individual custodians’ ESI or if removal of duplicates across custodians is appropriate. Parties must also specifically address and agree upon the definition of “duplicate.” For example, ESI that is forwarded to a new recipient is generally not considered a duplicate, nor is ESI that shows a bcc recipient.

Searches: The most common method of culling ESI is by use of electronic searching. If parties can reach an agreement regarding search methodologies, this can be very effective. However, it is important that parties specifically and carefully consider all aspects of searching and reach a complete agreement if future disputes are to be avoided. Specifically, parties should address what program or tool will be used for searching, whether the parties will use simple term queries, a more advanced method of searching using Boolean terms and connectors, or a more complex tool that allows for smart searching of ESI such as “concept searching” or “synonym searching." Finally, parties should agree on a list of terms or phrases to be applied.

4. Production of ESI:Parties should also agree on the format of ESI production. This includes a number of considerations, including:

Native format vs. image: It is generally less expensive to produce ESI in its native format. However, if ESI is created in proprietary or specialized software that a receiving party is unlikely to have access to, native format will not be useful. Moreover, ESI that is produced in native format will necessarily involve the production of metadata that parties may not wish to produce. Finally, ESI in native format may not be desirable to a receiving party if they wish to use review software that doesn’t function well with native ESI. The parties must address and agree whether ESI will be produced in its native format or as image files.

Metadata: Parties should agree if metadata is to be produced and, if so, which metadata fields must be produced. Standard metadata fields that are often produced include: author, recipient, cc, bcc, creation date, date last modified,subject line, file name, file extension, date sent, date received, page count and custodian.

Production numbering: The parties should address and agree upon a production numbering system to allow for the tracking and identification of ESI after production.

Usable format: The parties should address and agree upon a format that will allow the receiving party to use the produced material without needing substantial additional processing. The receiving party should specify, for example, whether its review platform requires a certain type of image file (e.g., .pdf or .tiff), a certain resolution and/or a certain type of load file.

Contributing Author

Laura Fraher

Laura Fraher is an associate in the trial and construction group at Shapiro, Lifschitz & Schram, P.C., focusing on complex commercial and construction litigation. Laura has...